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The Federal Trade Commission has recently indicated, in word and deed, that it intends to take an increased role in privacy protection through its Section 5 jurisdiction with regard to unfair or deceptive practices concerning consumers’ privacy. The Securities and Exchange Commission flexed its muscle with a Cyber Security Risk Alert in April of 2014 comprising a sample audit list of inquiries about safeguards for financial and personal data. Lost in the Net Neutrality debate and proposed regulation of Internet Service Providers (ISP’s) as though they were telephone-company-like utilities is the emergence of yet another federal agency asserting privacy jurisdiction: the Federal Communications Commission (FCC).

By voting to regulate ISP’s in this manner, the FCC has brought these companies under the rubric of Section 222 of the Communications Act. This provision requires utilities under FCC jurisdiction to implement safeguards for consumers’ “proprietary information,” including information that is “made available to the carrier solely by virtue of the carrier-customer relationship.” In other words, the FCC could restrict Internet “carriers” such as Google from reading, by human or algorithm, emails. If you had ever wondered why an ad for, say, The Gap, appeared in a Google sidebar after you had emailed a friend about your plan to buy a pair of jeans at the Gap, a clear answer may be made public if the FCC decides to restrict such practices and take other steps to curtail ISPs’ access to the content of communications on their networks and platforms.

The FCC fully intends to enforce the privacy provisions of Section 222, according to the Fact Sheet released by the FCC following the Net Neutrality decision (available at http://www.fcc.gov/document/chairman-wheeler-proposes-new-rules-protecting-open-internet) The Fact Sheet also notes that Commission intends to apply Title II, Sections 201 and 202 that proscribe “unjust and unreasonable practices.” That may impact continuation of e-commerce organizations’’ “browse wrap” Terms of Use that disclaim responsibility for security of users’ information, limitations of liability and mandatory arbitration clauses but presume binding agreement merely by using the organizations’ website.

The FCC decision to regulate ISP’s will, no doubt, be challenged and enforcement may not take place for at least a few years, assuming the challenges are unsuccessful. As a result of the FCC’s vote to regulate ISP’s the user experience with email and other communications platforms and websites may be quite different a few years from now.

In January, I wrote about the copyright infringement lawsuit that was filed against Pharrell Williams and Robin Thicke by the adult children of the late Marvin Gaye over the hit 2013 song “Blurred Lines.”

The Gayes alleged that the song was a replica of the Prince of Soul’s 1977 chart-topper “Got to Give It Up,” which the family owns rights to, and the jury agreed. However, the case may have also blurred the lines for future artists when it comes to paying homage to a past genre and violating copyrights.

The story began in August 2013 when singer Thicke, producer Pharrell and rapper T.I., who also appears on the song, filed suit against the Gayes as a preemptive measure after the Gayes spoke out about “Blurred Lines” being too similar to “Got to Give It Up.” The Gayes fired back with their own copyright infringement claim in October 2013.

While “Blurred Lines” shot up the charts and became one of the best-selling songs in history, the lawsuit played out in typical rock-and-roll fashion, with acknowledgements of drug use, public deception and a hunger for fame.

In September 2014, a deposition of Thicke was released in which he admitted being high during the recording of “Blurred Lines” and said that Pharrell was solely responsible for the song’s creation, though Thicke admitted that he had pretended to be more involved after the fact because he “wanted credit.”

Ultimately, the trial in the case began in mid-February of this year, and Thicke and Pharrell were successful in arguing that the jury should not hear the actual recording of “Got to Give it Up” because only the song’s sheet music was protected by the copyright.

Even without comparing the complete songs, the jury found in favor of the Gayes this week, deciding that copyright infringement had, in fact, taken place. They ordered Thicke and Pharrell to pay the Gayes $7.3 million in damages. The Gayes’ attorney also said he plans to stop sales of “Blurred Lines” until an agreement is reached on future royalties.

An attorney who has represented numerous musicians in copyright infringement lawsuits told the Associated Press that the decision “has blurred the lines between protectable elements of a musical composition and the unprotectable musical style or groove exemplified by Marvin Gaye.”

He implied that the decision sets bad precedent, and that today’s artists should be able to pay “homage” to past genres without the fear of being sued for copyright by the artists who originally shaped the genres.

The US may be approaching a turning point in its dominant economic leadership of the world, as Russia, India, China and the other BRICS nations are steadily becoming more assertive in seeking greater influence in global affairs. Per the International Monetary Fund in late 2014, the US has now been eclipsed by China as the world’s #1 economy. With America’s leading post-WWII partner, Europe, in economic stagnation and its lead Asian ally Japan now in continuing contraction, the new and game-changing geopolitical alliance of the higher-growth BRICS may lead to a ‘tectonic shift’ of global influence away from the US dollar as the lynchpin ‘reserve currency’ for the settlement of most international payments.

Since 1944, the US has benefitted enormously from the dollar’s status as the sole global ‘reserve currency.’ This has greatly facilitated America’s funding of its deficits from abroad, and it has also provided support for its global economic and political objectives. Over the past ten years, China has steadily sought to have its currency, the yuan, also enter the world stage as a reserve currency. China and its new allies have also recently established the new $100 Billion BRICS Development Bank and other similar institutions to compete with the US-dominated IMF and World Bank.

While the dollar currently continues to surge in global value as a ‘safe haven’ investment, there are many signs that the handwriting is on the wall for global currency shifts ahead. From China to Russia to India to Ukraine to Switzerland to Greece to Iran to Saudi Arabia and to new regimes in the Middle East, the US may be facing potential developments with both long-time allies and adversaries which could displace the US and the dollar from their solo lead role in international finance. The US has steadily resisted this shift for decades, because allowing the world to bypass the dollar could have profound implications for US influence in the world, as well as in the daily lives of Americans through higher prices for imported goods. A deeper look at many of the specific issues facing the global economy follows.

Use of private e-mail accounts for official communications by a United States Secretary of State raises significant legal and operational issues, as Hillary Clinton has demonstrated. It is also important to note, however, that similar concerns are raised by use of private electronic mail accounts for virtually any kind of official activity, even if you are not a senior member of the government. It will be extremely constructive if the discussion of the Clinton e-mail issue is expanded into a broader review of the “Bring Your Own Device” environments now widespread in the workplace.

It now seems clear that Hillary Clinton never used the electronic mail system operated by the United States government, relying instead on a private e-mail platform for all of her communications, including official messages, while she was Secretary of State. Two of the more important aspects of this disclosure involve security and documentation.

It is presently unclear what security measures were applied to Clinton’s private e-mail system, thus one can not assess whether any of her official messages may have been compromised. Additionally, use of the private system means that the automatic message archiving process integrated into the U.S. government system was not in use, at the sender end of the communications, for Clinton’s messages. Accordingly, documentation of her official communications as Secretary of State is likely incomplete. This can undermine the integrity of government records and reduce government transparency.

With the widespread availability and use of mobile computing and communications devices including smartphones and tablet computers, the distinctions between work and personal use of that equipment is increasingly blurred. Similarly, many organizations now routinely make use of e-mail, data storage, and other “cloud” computing services offered by outside parties such as Google and Amazon for their business operations. Employees make active use of Facebook and other social media platforms for both personal and work activities.

This computing and communications environment is often described as “Bring Your Own Device” (BYOD). At its core, the BYOD approach permits broad discretion on the part of individual employees as to computing and communications equipment and services used for work activities. This strategy empowers staff and may reduce business operating costs, however it also erodes the organization’s management control over data, information, and digital content.

Governments, commercial enterprises, and a wide range of other organizations are currently struggling to manage the BYOD environment. They want to obtain the competitive and commercial benefits of BYOD. At the same time, they must limit BYOD in order to maintain management control over their digital assets.

Some organizations have chosen to ban BYOD, requiring staff to use only equipment and services provided by the organization. Others permit BYOD only after the equipment and services to be used by the employee have been reviewed and approved by the information technology staff of the organization.

Unmanaged use of computing and communications equipment and services provided by external parties can threaten security and digital resource integrity. All organizations should recognize this challenge and develop policies, practices, and procedures specifically designed to govern use of those external information technology resources. If the Hillary Clinton e-mail discussion helps to encourage more organizations to address the challenges associated with BYOD, then it will prove to be a very useful teachable moment.

In researching the future of the Dark Web and its importance to corporate commerce, I sought the expertise of Douglas M. DePeppe, Cyberlaw Attorney/Cybersecurity Expert and cyberlaw practice lead at Aspire IP, with decades of experience studying and advising government and private interests on a wide range of Dark Web legal and security issues. This blog post covers our introductory conversation last week.

The first question I posed to Mr. DePeppe is whether legitimate companies should be preparing to do business in the Dark Web. Would companies not involved in any of the criminal activities for which the Dark Web has become famous (drugs, pedophelia, sale of counterfeit goods) realize any benefits to opening up redundant websites at .onion addresses (the primary address in the Dark Web), with which users could anonymously interact and conduct business? The premise is that if there are millions of users in the Dark Web space, why not reach out to them in their own, at least part-time, habitat. Whether or not that also would necessitate the acceptance of Bitcoin for payment is a separate issue, although a great number of major brick-and-mortar and surface web companies, including Subway, Amazon, Sears, and Victoria’s Secret, and recently Dell, have already have taken that step. However, perhaps more than direct buy/sell/hire transactions on the Dark Web, a likelier scenario might be Dark Web use for intelligence purposes.

Mr. DePeppe says that pursuing business in the Dark Web remains a viable (legitimate enterprise) commercial endeavor, for such activities as mining for consumer intelligence and trend analysis. This concurs with a recent Computer Weekly article, which asserted that “darknet technologies have legitimate security uses”. According to Mr. DePeppe, there remain, however, considerable trust issues in the Dark Web that will dissuade companies (including service companies like lawyers and accountants) from widespread use of Dark Web sites and services. In his words, there is a “lack of perceived legitimacy” that dissuades such use. In particular, there is a concern in many industries of verifying the actual “client” with whom you are dealing. This, he says, has been an issue in numerous investigations he has handled, in which confidence in and verification of the source of information were key factors. Yet, he also emphasized that commercial corporate intelligence must come to appreciate the treasure trove of intelligence residing on the Dark Web, and to work with cyber intelligence vendors, within a framework that assures vetting, trust, and legitimacy.

In addition, there are issues of maintained anonymity and disincentives for users—particularly corporate users — to “mix” Dark Web activities with surface web and offline activities. Further with respect to competitive intelligence-gathering, DePeppe indicates that future law developments in governing legitimate business conduct with entities that (also) have connections to criminal activity are unknown, implicating risks for legitimate enterprises’ pursuit of business on the Dark Web. In addition, there are questions as to whether future laws will criminalize the use of certain Dark Web technologies that have both legitimate uses and criminal uses. Mr. DePeppe envisions that in addition to intelligence uses, services in the Dark Web will remain popular vehicles for secure business communications.

In sum, the commercial future of the Dark Web for legitimate businesses remains fraught with trust issues as well as potential legal risks from its association with criminal actors and tools developed for criminal activities. The likeliest short-term scenario for legitimate business will be for security and intelligence analysis and for secure communications. Longer-range, legitimate retail deployment of the Dark Web remains more unpredictable, DePeppe indicated.

My next blog will address the issue of trade secret violations on the Dark Web, and recent developments that could result in expansion of that problem for corporate interests.

The case reporters are replete with decisions reminding lawyers and insurance professionals that the meaning of insurance policy language must be interpreted in the context of the policy. Context is not, however, limited to the four corners of the policy. Some courts look to the “full context” of the policy provision at issue which may include the “‘broader culture’ of the world at large.”

Two recent decisions of the Wisconsin Supreme Court illustrate this broader form of contextual interpretation. In both Wilson Mutual Insurance Co. v. Falk, 857 N.W.2d 156 (Wis. 2014), and Preisler v. General Casualty Insurance Co., 857 N.W.2d 136 (Wis. 2014), the Wisconsin Supreme Court focused on the context of the underlying claim in determining whether a substance is a “pollutant” within the meaning of a CGL policy’s Pollution Exclusion. In Falk and Preisler, the court found that cow manure and septage qualify as “pollutants” when found in a well, even if they may not so qualify in other contexts.

Factual Background

In both Falk and Preisler, the insured dairy farmers used cow manure (Falk) or septage (Preisler) to fertilize farm fields, a common practice among farmers. The insureds in Preisler also processed septage for use on their fields and sale to other farmers. In both cases, neighbors alleging that their well water had become contaminated by the manure or septage sued the insured.

The insureds sought coverage under the commercial general liability portions of their farm insurance packages. The policies insured against liability for bodily injury or property damage caused by an “occurrence” and defined an occurrence as “an accident, including . . . repeated exposures to” similar harmful conditions. The policies also contained similarly worded pollution exclusions that excluded harm “arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants.’” The policies defined “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.”

Dairy Farmers’ “Liquid Gold” Is Neighbor’s Pollutant

The trial courts in both cases ruled that the pollution exclusion precluded coverage for the neighbors’ lawsuits. The intermediate appellate court affirmed in Preisler but reversed in Falk. The Falk appellate court reasoned that a reasonable farmer would consider cow manure to be “liquid gold” and not a pollutant when applied to a farm field. For a farmer, “manure is an everyday, expected substance … that is not rendered a pollutant under the policy merely because it may become harmful in abnormally high concentrations or under unusual circumstances.”

The Wisconsin Supreme Court reinstated the trial court rulings. After finding that the contamination of the wells qualified as an occurrence within the meaning of the policies’ insuring agreements because the seepage was neither expected nor intended, the supreme court focused on whether the pollution exclusions precluded coverage. In Preisler, the court opined that “a reasonable insured would understand decomposing septage to be a contaminant when it seeps into a water supply” such as plaintiffs’ wells. The court further noted that state and federal regulations of septage handling supported the conclusion that the insureds should have been aware of the health risks connected with hauling, storing and applying septage.

In Falk, the court adopted a two part test for determining the pollution exclusion’s applicability to a given set of facts. First, a substance is a pollutant if it is “largely undesirable and not universally present in the context of the occurrence [for which] the insured seeks coverage.” Second, a substance is a pollutant when “a reasonable insured would consider the substance causing the harm involved in the occurrence to be a pollutant.” The court found both elements satisfied here because cow manure in well water is undesirable, it is commonly understood to be harmful, and it is not universally present in well water.

Chief Justice Abrahamson wrote strongly worded dissents to both decisions in which she focused on the insureds’ reasonable expectations in light of the nature of their businesses. In Preisler, she observed that the insureds would not consider “septage a pollutant under the pollution exclusion clause of general liability policies they purchased to cover liability for damage caused by their septic business operations.” In Falk, she reasoned that farmers, covered under a farmowner’s liability policy, would not consider manure a pollutant.

Recent filings show that public companies remain concerned about escalating conflicts in the Middle East involving the Islamic State of Iran and Syria (ISIS).

Several companies disclosed concerns in the fourth quarter of last year regarding the potentially adverse effects that ISIS-related conflicts could have on commerce in the Middle East. Ecopetrol SA, for example, disclosed in a Form 6-K filing last December that the conflict could harm crude oil prices in the region.

Concerns about increased threats from ISIS also continue to dominate mainstream news headlines. Most recently, after six months of defensive airstrikes, President Barack Obama asked Congress for the power of military action against ISIS.

Given the ongoing conflict, it is unsurprising that public companies’ risk factors continue to note concerns about ISIS-related effects on global commerce.

Israel-based Mobileye NV, for example, recently filed a registration statement for a secondary offering that warned that the Middle East “has seen the growth of the Islamic State and increased internal hostilities in Iraq.”

And part of this preparation in regards to live witnesses is crafting just the right questions for each of your witnesses. After all, your questions guide the witnesses on just what to say and how to say it – which can often have a pivotal impact on the outcome of your case.

Given the significance of a properly prepared witness, it’s no surprise that many attorneys will rigorously prepare their witnesses well before the trial so that they say exactly what they are supposed to say.

But after the direct examination of every witness comes the cross-examination – when opposing counsel has his or her own crack at your witness, and will use this opportunity to ruin your witness’s credibility as much as possible. Fortunately, it’s possible to prepare your witnesses for this to a certain extent by anticipating the possible weaknesses in the story and the points which the opposing counsel is most likely to attack.

On the other hand, it’s very difficult to prepare ahead of time for your own cross-examination of the opposition’s witnesses; despite the fact that you’ll know who those witnesses will be at some point before the trial actually begins, you don’t know exactly what they are going to say until you are listening to them say it in the courtroom.

And unfortunately, you can’t question these witnesses on any subjects that they didn’t testify about on direct examination (with the exception of impeachment, which we’ll get into in more detail later), leaving you only with as long as the witness is speaking during direct examination to prepare an effective cross-examination. And sadly, the narrowness of this window doesn’t diminish the importance of having a fully developed cross-examination strategy ready and waiting.

As such, it’s important to make full use of the limited time you have.

First, pay very close attention to what the witness on the stand is saying. How does his or her version of the events compare to the version that you’re trying to present? Why is it different? These points of inconsistency should be the areas of your focus on during cross-examination so that your version of the events appears as the most reliable.

Also identify any inconsistencies or weaknesses in the witness’s narrative. If something doesn’t make sense to you, it probably doesn’t make sense to the judge or the jury either, so make sure to focus on these points in your cross so that the witness’s story appears less credible.

Naturally, though, most witnesses won’t willingly say something to contradict themselves or the story that he or she just told. And this is why you don’t ask open-ended questions during cross-examination; put another way, you, rather than the witness, are leading the narrative during cross-examination.

This is accomplished by phrasing all of your dialogue with the witness in the form of “yes” or “no” questions – questions that you will already know how the witness will answer. These “questions” are basically argumentative statements turned into questions with the addition of a word or phrase (e.g., “Isn’t it true that…” and “…correct?”).

In sum, when you’re preparing your cross-examination, first structure it as a rebuttal-type argument, and then rephrase your main points as closed questions. This will ensure that the witness deviates as little as possible from what you what him or her to say. And in case the witness finds some other way to start talking about things that you don’t want the rest of the courtroom to hear, interject another question to get him or her back on your point.

On a final note, there is one area of cross-examination for which you can prepare ahead of time: impeachment. As mentioned earlier, this is one area that you don’t have to feel limited to only the topics discussed on direct examination. Instead, you can come up with any subject for which the witness can be impeached. For example, if the witness was caught cheating on an exam in college, you can ask about that. The same applies for a commission of a crime of dishonesty (fraud, theft by swindle, etc) or any other act that would raise questions about the witness’s trustworthiness.

The major caveat here is that you will need to have some kind of corroborating evidence to support any claims of dishonest behavior in case the witness flatly denies them. It’s also important to observe for any inconsistencies in the witness’s testimony on direct examination that may be the result of mental or physical impairment (poor eyesight, hearing, etc).

In addition, be fully aware of any statements made by the witness about the facts of the case prior to his or her taking the stand. If something the witness says conflicts with a prior statement in, say, a police report, bring that up. And if it benefits your case, point out the fact that his or her memory was probably fresher about the incident immediately after it occurred rather than months later under the scrutiny of the courtroom.

Considering that trials are often decided on witness testimony, the effectiveness of your cross-examination technique can literally win the case for you – which is why it is important to make the most of the little preparation time that you have.

Several well-known issuers have launched billion-dollar note offerings in February, a sign of healthy debt markets for public companies.

Microsoft Corp. announced the largest debt offering of the year so far on Feb. 11. The technology company filed a prospectus supplement pricing a public offering of fixed-rate notes at approximately $10.75 billion.

Fellow technology company Apple Inc. sold five series of notes a week earlier through a public debt offering on Feb. 3. The fixed and floating rate notes are collectively valued at $6.5 billion.

Merck & Co. Inc. and Netflix Inc. also launched billion-dollar debt offerings in February. Merck filed a prospectus supplement on Feb. 5 pricing an $8 billion note offering. The pharmaceutical company will sell six series of fixed and floating rate notes.

Similarly, Netflix filed a Form 8-K on Feb. 5 disclosing that it will sell $1.5 billion in fixed-rate senior notes. Unlike Microsoft, Apple and Merck, Netflix will only sell unregistered debt to qualified institutional buyers through the private offering exemption provided by Rule 144A of the Securities Act.

Topical Highlights for Labor and Employment provides summaries of significant federal and state judicial decisions and legislative and administrative activities affecting labor and employment law. A Westlaw subscription is required to access the documents linked from this page.

In the case at bar, the Sixth Circuit, applying its Yard-Man presumption, reversed the district court’s dismissal of retirees’ claims that a CBA, which contained a general durational clause, had created a vested right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents.

Writing for the Court, Justice Thomas said the Yard-Man presumption violates ordinary contract principles by placing a thumb on the scale in favor of vested retiree health benefits in all collective bargaining agreements, distorting the attempt to ascertain the intention of the parties, and instead applying a presumption of the likely behavior of parties during collective bargaining. This assessment of likely behavior had not been based on record evidence in the Yard-Man case, and it was too speculative and too far removed from the context of any particular contract to be useful in discerning the parties’ intent.

According to Justice Thomas, the Sixth Circuit had extended Yard-Man‘s statement, that context considerations outweigh the effect of a general termination clause, to the conclusion that, absent specific durational language referring to retiree benefits, a general durational clause “says nothing” about the vesting of retiree benefits.

Justice Ginsburg, in a concurring opinion in which Justices Breyer, Sotomayor, and Kagan joined, stated that contrary to the position asserted in the employer’s brief, no rule required clear and express language in order to show that parties intended health care benefits to vest. Rather, constraints on an employer after the expiration of a CBA could arise from implied terms of the expired CBA. (Vacating and remanding Tackett v. M & G Polymers USA, LLC, 733 F.3d 589 (C.A.6–Ohio 2013).) 2015 WL 303218. (The full-text of the rest of the Topical Highlights is available within Westlaw Next, subscription required).